Michigan Supreme Court sides with Nessel on question in right-wing robocall case
Michigan Attorney General Dana Nessel walks out after oral arguments in the Michigan Supreme Court for the case against Jack Burkman and Jacob Wohl on Nov. 9, 2023. (Photo: Anna Liz Nichols)
The Michigan Supreme Court ruled Thursday that a lower court should review whether a pair of far-right operatives broke the law when they made tens of thousands of calls spreading misinformation about voting across Midwestern states ahead of the 2020 presidential election.
Jack Burkman and Jacob Wohl were charged in 2021 by Michigan Attorney General Dana Nessel with multiple felonies including voter intimidation and using computers to commit crimes against election laws. They are alleged to have made thousands of calls in cities where the majority of residents are minority groups like Detroit, where 12,000 calls were made and 79% of residents are Black. Prosecutors say it was intended to discourage voters from participating in the November 2020 general election by falsely claiming that if voters participated in mail-in voting, their personal information would be added to a public database used by law enforcement officials and credit card companies.
In one message cited in the appeals court decision, Burkman told Wohl his satisfaction about how successful the robocalls were.
“I love these robocalls getting angry black call backs, win or lose, the black robocalls was [sic] a great idea,” said Burkman.
The prosecution in the case has argued the focus on communities of color was intentional by the pair, who have a history of manufacturing conservative conspiracy theories.
Burkman and Wohl contested their bind over for trial, arguing their actions were not “menacing” with threats of violence, as required by the statute they were charged under. They additionally claimed their misinformation efforts were protected by the First Amendment. The Michigan Court of Appeals declined to dismiss the case, determining that while the legal definition of “menace” in this context was undefined, the charges were justified under wording in the statute about “other corrupt means or device.”
In its 5-2 ruling, the state Supreme Court agreed that the defendant’s actions were illegal in that context.
“The prosecutor presented sufficient evidence to cause a person of ordinary prudence and caution to entertain a reasonable belief that defendants had attempted to deter Black metro-Detroiters from voting in the 2020 election by the immoral or depraved method of spreading misinformation regarding the consequences of voting and that defendants did so with racially based motives,” wrote Republican-nominated Chief Justice Elizabeth Clement, who was joined by the court’s four Democratic-nominated justices.
However, the majority opinion concluded the phrase “other corrupt means or device” in the context of First Amendment rights should be narrowly defined as prohibiting “intentionally false speech” as it related to voting. Thus, lower courts should review the actions of Burkman and Wohl within that limited definition.
Nessel took the ruling as a win as it allowed the prosecution to proceed.
“This voter intimidation law is a vital protection for Michigan voters and proponents of a participatory democracy,” said Nessel. “Intentionally false statements to deceive any Michigan voter from exercising their rights at the ballot box are illegal, and I’m grateful to have this ruling make that abundantly clear, especially as we head toward another presidential election this autumn. We look forward to continuing with the criminal case and bringing this matter to trial.”
In a dissenting opinion, Republican-nominated Justices Brian Zahra and David Viviano said they interpreted the law as requiring a promise of action in order to achieve a benefit.
“Because the content of the robocall did not threaten or promise to take any action against or in support of its intended recipients, the dissemination of defendants’ message was neither a menace not accomplished by corrupt means,” wrote Zahra and Viviano, who said the court should have reversed the appeals court decision and ordered the trial court to drop the charges.
The matter now returns to the Michigan Court of Appeals to determine whether Burkman and Wohl intentionally engaged in false speech related to voting that was designed to deter Black voters in Detroit.
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